IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

PHILIP POOLE, 

 Plaintiff, 

 vs. Civil Action 2:12-CV-101 

 Judge Frost 

 Magistrate Judge King 

MICHAEL J. ASTRUE, Commissioner 

of Social Security, 

 Defendant. 

REPORT AND RECOMMENDATION 

I. 

Introduction and Background

This is an action instituted under the provisions of 42 U.S.C. §§ 

405(g), 1383 for review of a final decision of the Commissioner of Social 

Security denying plaintiff’s application for supplemental security income. 

This matter is now before the Court on plaintiff’s Statement of Errors, 

Doc. No. 12, and the Commissioner’s Memorandum in Opposition, Doc. No. 13. 

 Plaintiff Philip Poole filed his application for benefits on October 

23, 2007, alleging that he has been disabled since May 2, 2006, as a result 

of Epstein Barre syndrome and a back injury. PAGEID 166-68, 188. The 

application was denied initially and upon reconsideration, and plaintiff 

requested a de novo hearing before an administrative law judge. 

 A video hearing was held on July 21, 2010, at which plaintiff, 

represented by counsel, appeared and testified as did Vickie Colenburg, 

who testified as a vocational expert. In a decision dated July 28, 2010, 

the administrative law judge found that, despite his severe back 

impairment, plaintiff had the residual functional capacity for a reduced 

range of sedentary work. Relying on the testimony of the vocational 

expert, the administrative law judge found that this residual functional 

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capacity permitted the performance of a significant number of jobs, 

including such jobs as check casher, office helper and order clerk. 

Accordingly, the administrative law judge concluded that plaintiff was not 

disabled within the meaning of the Social Security Act. PAGEID 59-66. That 

decision became the final decision of the Commissioner of Social Security 

when the Appeals Council declined review on December 13, 2011. PAGEID 48-52. 

 Plaintiff was 40 years of age at the time he filed his application. 

PAGEID 65, 166. He has a high school education. PAGEID 65, 192-93. 

Although he has worked on his family’s farm, PAGEID 74, plaintiff has no 

past relevant work. PAGEID 65, 188-89, 204. 

II. 

Plaintiff’s Testimony1

 Plaintiff testified at the administrative hearing that he lives with 

his mother on his family’s farm. He can care for himself, but requires 

assistance in lifting heavy, bulky or awkward items. He cooks occasionally 

and washes dishes. He is no longer able to push a mower; he does light 

gardening for 5-l0 minutes/day. PAGEID 75. He socializes with neighbors 

and family members. He occasionally reads. He has problems with his 

memory. PAGEID 76. 

 Plaintiff complained of difficulty getting things done in a timely 

manner. PAGEID 76-77. “It’s a rather variable thing.... I can feel the 

bones in my lower back move, and if they shift the wrong way then I’m pretty 

much just going to fall.” PAGEID 77. His back problems are unpredictable, 

making it difficult to schedule activities Id. 

 Plaintiff’s pain varies, depending on his back condition. PAGEID 86. 

 

1

Because resolution of the issues presented in this case do not turn on the 

vocational expert testimony, the Court will not summarize that testimony.

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He has rejected back surgery because there is a chance of paralysis and 

no guarantee that surgery will relieve his pain. PAGEID 78. He cannot use 

Vicodin for his pain because it makes him nauseated. Id. Over the counter 

pain medication provides some temporary relief. Id. He rated his pain 

as 5-9 on a ten-point scale. PAGEID 78-79. 

 Plaintiff can sit and stand for only short periods of time; he has 

trouble walking even a few blocks. PAGEID 79-80. He can lift up to 20 pounds 

but has trouble pushing or pulling objects. He can stoop and occasionally 

bend down to pick up objects off the ground, but if his vertebrae slip, 

he becomes “lock[ed] . . . in place.” PAGEID 81. He has difficulty climbing 

stairs if his pain radiates into his right foot; he tends to drag his right 

heel. Id. 

Plaintiff works on the farm every day. PAGEID 82. He testified that 

he feeds and waters the animals daily and tracks the blood lines of breeding 

cows and their calves. He can no longer complete these tasks as quickly 

as he previously could because he must stop and rest. Id. 

III.

The Medical Evidence of Record.

 An October 2004 x-ray of the lumbar spine was read as documenting 

unstable spondylolytic spondylolisthesis of L4-5, moderately advanced 

discogenic spondylosis at L4-5 and L5-S1, marked posterior apophyseal joint 

arthrosis at L3-S1, intravertebral canal encroachment at L5-S1, and mild 

discogenic spondylosis at L2-3. PAGEID 354. 

 During a May 2005 office visit, primary care physician Teresa Quinlin, 

M.D., noted negative straight leg raising and no clonus. Plaintiff 

reported that his pain pattern migrates from mid to low back. He can walk 

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three miles and goes mushroom hunting. According to Dr. Quinlin, 

plaintiff’s “fairly extensive” ambulation “tends to aggravate some of his 

symptoms.” PAGEID 353. 

 In August 2005, plaintiff was consultatively examined at the request 

of the state agency by Robert Woskobnick, D.O. PAGEID 316-18. Dr. 

Woskobnick diagnosed chronic back pain with a history of spondylolisthesis 

of L4 and L5 and degenerative disc changes and joint disease. According 

to Dr. Woskobnick, prolonged standing, walking, repetitive bending forward 

and lifting would aggravate plaintiff’s back pain. Plaintiff “would be well 

suited to do sedentary activities.” PAGEID 318. 

 Dr. Quinlin saw plaintiff again on August 22, 2007. She reviewed the 

2004 x-rays provided by plaintiff and commented that plaintiff’s 

spondylolisthesis at L4-5 was “markedly obvious.” According to Dr. Quinlin, 

plaintiff “is very blessed he can even walk.” PAGEID 353. In a Basic 

Medical Form completed that same day, PAGEID 332-34, 355-56, Dr. Quinlan 

indicated that plaintiff could stand/walk for less than 30 minutes without 

interruption and less than 30 minutes in an eight-hour workday, could sit 

for 15 minutes without interruption and 15 minutes in an eight-hour workday, 

could lift/carry 20 lbs. occasionally and 10 lbs. frequently and was 

moderately limited in his ability to bend. Dr. Quinlin based her assessment 

on the 2004 x-rays. PAGEID 333, 356. 

 In December 2007, Mark Weaver, M.D., performed a consultative 

examination at the request of the state agency. PAGEID 322-30. Plaintiff 

reported constant low back pain and stiffness which limits his ability to 

lift, bend, twist and carry to 10 pounds occasionally, and his ability to 

sit, stand and walk to 30 minutes at a time. Plaintiff also reported using 

a walking stick intermittently. On clinical examination, Dr. Weaver noted 

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no swelling or gross deformities, tenderness, crepitus or ligamentous 

laxity in any extremity. Strength testing was normal and symmetric. He 

noted thoracolumbar scoliosis with flattening of the lower thoracic and 

lumbar curves. Dr. Weaver also noted constant moderate involuntary spasm 

to inspection and palpation of the lower thoracic and lumbar paravertebral 

muscles bilaterally, with tenderness to palpation in the lumbosacral 

junction and lower lumbar vertebrae. Active motion was restricted in the 

dorsolumbar spine with complaints of pain at the extremes of motion. 

Straight leg raising was negative bilaterally for radicular sciatica pain. 

No organic radicular cervical, thoracic or lumbar nerve root impingement 

was noted. After examining plaintiff and reviewing the 2004 x-rays, Dr. 

Weaver concluded that plaintiff would be limited in his ability to engage 

in sustained sitting, standing and walking and in performing repetitive 

or moderate to heavy lifting and carrying. According to Dr. Weaver, 

plaintiff could perform physical activities involving occasional light 

lifting and carrying short distances and handling objects; he would also 

require an environment that allowed him to change positions from sitting 

to standing periodically. PAGEID 325. 

 State agency physician Gerald Klyop, M.D., reviewed the file in May 

2008, PAGEID 335-42, and concluded that plaintiff could lift and/or carry 

and push and/or pull up to 50 pounds occasionally and up to 25 pounds 

frequently; he could stand and/or walk about six hours in an eight-hour 

workday and could sit about six hours in an eight-hour workday. Id. Dr. 

Klyop also found that plaintiff’s allegations were partially credible 

PAGEID 340. 

 F. Paul DeGenova, D.O., an orthopaedic surgeon, saw plaintiff on June 

27, 2008 for complaints of worsening low back pain. PAGEID 343-44. Plaintiff 

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complained of shooting pain into the right leg with occasional pain in the 

left leg. Plaintiff rated the pain at 6 on a 10-point scale; his symptoms 

improve when he lies down. Plaintiff also reported numbness/tingling in 

the right leg. An elastic brace provided some relief. PAGEID 343. 

Plaintiff reported that he could be active for an hour or two. Dr. DeGenova 

noted “a bit of an antalgic gait;” plaintiff’s tandem gait was steady and 

both his heel and toe walk were strong. Id. There was no tenderness to 

palpation, spasm or atrophy in the spine. There was normal range of motion 

in the lumbar spine. PAGEID 344. Straight leg raising was negative 

bilaterally with no radicular signs or symptoms; there was good strength 

bilaterally. Id. X-rays provided by plaintiff documented a grade II 

spondylolisthesis at L4-5 with some degeneration at L5. Dr. DeGenova 

diagnosed grade II spondylolisthesis L4-5, degenerative disc disease 

L5-S1, and back pain. Id. He recommended an MRI and physical therapy. Id. 

 A July 2008 MRI of the lumbar spine revealed multi-level degenerative 

disc disease, most prominent at L4-5 and L5-S1, moderate grade I 

spondylolisthesis at L4-5 with mild facet joint diffusion and minimal disc 

bulge at L2-3 and L3-4 causing mild neural foraminal stenosis. There was 

no herniated discs or significant canal stenosis. PAGEID 347-48. 

 When plaintiff was evaluated for physical therapy on July 10, 2008, 

the therapist observed that plaintiff’s sitting and standing postures were 

within functional limits; he ambulated without significant gait 

deviations. PAGEID 349. 

 At a July 11, 2008 office visit, plaintiff complained to Dr. DeGenova 

of continued, constant low back pain. PAGEID 345. However, he commented 

that he is “able to deal with [his back pain]. He has had it all of [h]is 

life.” Dr. Degenova offered various treatment options: physical therapy, 

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epidural steroid injections and surgery. Plaintiff opted to continue 

physical therapy. Id.

 On August 15, 2008, plaintiff noted some improvement with physical 

therapy, but complained that he was still unable to work or ride in a car 

into town. PAGEID 346. According to Dr. DeGenova, plaintiff’s clinical 

findings were unchanged: he had full motor strength, +5/5 strength in the 

bilateral lower extremities and full sensation and symmetric bilateral deep 

tendon reflexes at the patella and Achilles. Id. Dr. DeGenova concluded 

that plaintiff “is total[ly] disabled unable [sic] to work a day in his 

life.” Id.

IV. 

Administrative Decision 

 In his decision, the administrative law judge found that 

plaintiff’s severe impairments consist of degenerative disc disease of the 

lumbar spine with moderate grade I spondylolisthesis at the L4-L5 vertebrae 

and mild disc bulges at the L2-L3 and L3-L4 vertebrae without stenosis. 

PAGEID 61. Plaintiff does not have an impairment or combination of 

impairments that meets or medically equals any listed impairment, PAGEID

62, and has the residual functional capacity 

to perform sedentary work as defined in 20 CFR 416.967(a), 

meaning be can lift and/or carry 10 pounds occasionally and less 

than 10 pounds frequently; stand and/or walk for 2 hours in an 

8 hour workday; and, sit for 6 hours in an 8 hour workday. The 

claimant must also have a sit/stand option exercised at his 

discretion that allows him to stretch his back. There should be 

no climbing of stairs, ropes, scaffolding, or ladders. The 

claimant should never kneel, crouch, or crawl, but can 

occasional stoop. There should be no forced pace or quota 

requirements and no assembly line work. 

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Id. Relying on the vocational expert’s testimony, the administrative law 

judge found that plaintiff is able to perform other work that exists in 

significant numbers in the national economy. Id. Accordingly, the 

administrative law judge concluded that plaintiff is not disabled within 

the meaning of the Social Security Act. PAGEID 66. 

V.

DISCUSSION

 Pursuant to 42 U.S.C. §405(g), judicial review of the Commissioner’s 

decision is limited to determining whether the findings of the 

administrative law judge are supported by substantial evidence and employed 

the proper legal standards. Richardson v. Perales, 402 U.S. 389 (1971). 

Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005). 

Substantial evidence is more than a scintilla of evidence but less than 

a preponderance; it is such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion. Jones v. Comm’r of Soc. Sec., 

336 F.3d 469, 475 (6th Cir. 2003); Kirk v. Secretary of Health & Human 

Servs., 667 F.2d 524, 535 (6th Cir. 1981). This Court does not try the case 

de novo, nor does it resolve conflicts in the evidence or questions of 

credibility. Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007). 

 In determining the existence of substantial evidence, this Court must 

examine the administrative record as a whole. Kirk, 667 F.2d at 536. If 

the Commissioner’s decision is supported by substantial evidence, it must 

be affirmed even if this Court would decide the matter differently, Tyra 

v. Sec’y of Health & Human Servs., 896 F.2d 1024, 1028 (6th Cir. 1990)(citing 

Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983)), and even if 

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substantial evidence also supports the opposite conclusion. Longworth, 402 

F.3d at 595. 

 In his Statement of Errors, contends, first, that the administrative 

law judge failed to accord proper deference to the opinions of plaintiff’s 

treating physicians, Dr. DeGenova and Dr. Quinlin, see Doc. No. 12 at PAGEID

366, and, second, in evaluating plaintiff’s subjective complaints, id. at 

PAGEID 368. 

 Opinions of treating physicians must be accorded controlling weight 

if they are “well-supported by medically acceptable clinical and laboratory 

diagnostic techniques” and not “inconsistent with the other substantial 

evidence in [the] case record.” 20 C.F.R. §416.927(d)(2). If the 

administrative law judge finds that either of these criteria have not been 

met, he is then required to apply the following factors in determining the 

weight to be given a treating physician’s opinion: “The length of the 

treatment relationship and the frequency of examination, the nature and 

extent of the treatment relationship, supportability of the opinion, 

consistency of the opinion with the record as a whole, and the 

specialization of the treating source. ...” Wilson v. Comm’r of Soc. Sec., 

378 F.3d 541, 544 (6th Cir. 2004). In this regard, the administrative law 

judge is required to look at the record as a whole to determine whether 

substantial evidence is inconsistent with the treating physician’s 

assessment. See 20 C.F.R. §416.927(d)(2),(4). 

 The administrative law judge rejected Dr. DeGenova’s opinion that 

plaintiff is “unable to work a day in his life,” PAGEID 346, as inconsistent 

with plaintiff’s own testimony and invasive of the Commissioner’s 

prerogative: 

The claimant has a history of working on the family farm at 

least on a part-time basis. The claimant also testified that 

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he is still doing light farm work. Opinions by a medical 

source that claimant is disabled will be reviewed along with 

any other evidence that supports the opinion, but the 

Commissioner is responsible for making the determination or 

decision about whether claimant meets the statutory definition 

of disability. 

 

PAGEID 64. He assigned “no weight” to Dr. Quinlan’s extremely restrictive 

August 2007 functional capacity assessment as “not substantiated by or 

consistent with the objective medical evidence.” Id. The administrative 

law judge had earlier specifically noted that the “objective medical 

evidence” included findings at the August 2005 consultative examination 

by Dr. Woskobnik, who recommended a limitation to sedentary activity, 

PAGEID 316-18, and findings at the December 2007 consultative examination 

by Dr. Weaver, who recommended a sit/stand option, PAGEID 322-30. PAGEID

63. Indeed, the residual functional capacity found by the administrative 

law judge incorporated these recommendations. See PAGEID 62. This Court 

concludes that the administrative law judge gave good reasons for the weight 

accorded the opinions of these treating physicians. See 20 C.F.R. § 

416.927(d)(2). Moreover, the Commissioner is not bound by a treating 

provider’s opinion of disability. 20 C.F.R. § 416.927(e)(3). 

Plaintiff’s first challenge to the decision of the administrative law judge 

is without merit. 

 Plaintiff also challenges the administrative law judge’s assessment 

of plaintiff’s subjective complaints. A claimant's subjective complaints 

must be supported by objective medical evidence. Casey v. Sec’y of Health 

& Human Servs., 987 F.2d 1230, 1234 (6th Cir. 1993). See also 42 U.S.C. 

§ 423(d)(5)(A). In evaluating subjective complaints, the evaluator must 

look to the record to determine whether there is objective medical evidence 

of an underlying medical condition. Stanley v. Sec’ of Health & Human 

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Servs., 39 F.3d 115, 117 (6th Cir. 1994). If so, the evaluator must then 

determine (1) whether objective medical evidence confirms the severity of 

the complaint arising from the condition; or (2) whether the objectively 

established medical condition is of such severity that it can reasonably 

be expected to produce the alleged complaint. Id. (quoting Duncan v. Sec’y 

of Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986). 

The administrative law judge’s credibility determination is accorded 

great weight and deference because of the administrative law judge’s unique 

opportunity to observe a witness' demeanor while testifying. Buxton v. 

Halter, 246 F.3d 762, 773 (6th Cir. 2001) (citing Gaffney v. Bowen, 825 

F.2d 98, 973 (6th Cir. 1987)). However, credibility determinations must 

be clearly explained. See Auer v. Sec’y of Health & Human Servs., 830 F.2d 

594, 595 (6th Cir. 1987). If the administrative law judge's credibility 

determinations are explained and enjoy substantial support in the record, 

a court is without authority to revisit those determinations. See Felisky 

v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994); Beavers v. Sec’y of Health, 

Educ. and Welfare, 577 F.2d 383, 386–87 (6th Cir. 1978). 

 The administrative law judge noted plaintiff’s subjective complaints 

and testimony and found that the medical evidence supports allegations of 

pain and discomfort. However, the administrative law judge went on to find 

that 

there is no objective medical evidence to show that the 

severity [of that pain and discomfort] would prevent him 

from doing a job that would follow the above outlined 

residual functional capacity assessment. To the extent 

they are credible the claimant’s subjective allegations 

have been considered and incorporated into the above 

outlined residual functional capacity. The assessment 

of the functional capacity gives the greatest possible 

weight to his allegations. 

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PAGEID 64. Elsewhere in the opinion, the administrative law judge also 

noted plaintiff’s own testimony that he still works part-time on the family 

farm. The administrative law judge specifically found that plaintiff’s 

statements concerning “the intensity, persistence and limiting effects of 

these symptoms are not credible to the extent they are inconsistent with 

the residual functional capacity assessment” found by the administrative 

law judge. PAGEID 62. This Court concludes that, in making this 

credibility determination, the administrative law judge applied the 

appropriate standards and his findings are supported by substantial 

evidence. The Court is therefore without authority to reject those 

findings. The mere fact that the administrative law judge’s opinion is 

relatively short does not militate a different result. 

 It is therefore RECOMMENDED that the decision of the Commissioner of 

Social Security be affirmed and that this action be dismissed. 

If any party seeks review by the District Judge of this Report and 

Recommendation, that party may, within fourteen (14) days, file and serve 

on all parties objections to the Report and Recommendation, specifically 

designating this Report and Recommendation, and the part thereof in 

question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1); 

F.R. Civ. P. 72(b). Response to objections must be filed within fourteen 

(14) days after being served with a copy thereof. F.R. Civ. P. 72(b). 

 The parties are specifically advised that failure to object to the 

Report and Recommendation will result in a waiver of the right to de novo 

review by the District Judge and of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. 

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Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of Teachers, Local 

231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d 

947 (6th Cir. 1981). 

Date: February 5, 2013 s/Norah McCann King 

Norah McCann King 

 United States Magistrate Judge

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